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Accountability for Pesticide Poisoning of Undocumented Farmworkers Elizabeth Lincoln

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Accountability for Pesticide Poisoning of Undocumented Farmworkers Elizabeth Lincoln CORE Metadata, citation and similar papers at core.ac.uk Provided by UC Hastings Scholarship Repository (University of California, Hastings College of the Law) Hastings Environmental Law Journal Volume 24 | Number 2 Article 12 1-1-2018 Accountability for Pesticide Poisoning of Undocumented Farmworkers Elizabeth Lincoln Follow this and additional works at: https://repository.uchastings.edu/ hastings_environmental_law_journal Part of the Environmental Law Commons Recommended Citation Elizabeth Lincoln, Accountability for Pesticide Poisoning of Undocumented Farmworkers, 24 Hastings Envt'l L.J. 383 (2018) Available at: https://repository.uchastings.edu/hastings_environmental_law_journal/vol24/iss2/12 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Environmental Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Accountability for Pesticide Poisoning of Undocumented Farmworkers By Elizabeth Lincoln Abstract The illness burden experienced by farmworkers from exposure to pesticides is unparalleled in any other workforce in the United States. This paper explores current, specific legal protections available to undocumented farmworkers in California who suffer from pesticide poisoning. Despite efforts to regulate, use of dangerous pesticides remains rampant nationwide. Considering at least half of farmworkers are undocumented immigrants, the risk of retaliation is a central concern for reporting. Using California as a case study, this paper looks at both state and federal remedies for farmworkers. Exploring these various legal frameworks, this paper will weigh the pros and cons to each approach, considering at the forefront the particularly vulnerable situation in which undocumented immigrants find themselves: vulnerable to exploitation, retaliation, and deportation. In conclusion, the author advocates for federal protection from deportation for undocumented farmworkers who suffer from pesticide poisoning in the form of expanded eligibility for the U-visa. This will lead to more accurate reporting of the issue, increased support for criminal prosecutions for the criminal misuse of pesticides, and, hopefully, accountability for pesticide poisoning of undocumented farmworkers. Introduction Headaches, migraines, allergic reactions, nausea, asthma, vomiting, diarrhea, skin conditions, seizures, shortness of breath, cancer, infertility, respiratory problems, neurological issues, tumors, lung failure, leukemia, hypertension, diabetes.1 These are all health effects linked to pesticide exposure, which “causes farmworkers to suffer more chemical-related injuries and illnesses than any other workforce in the nation.”2 Of the approximately 1.4 million farmworkers in the 1. Exposed and Ignored: How Pesticides are Endangering our Nation’s Farmworkers, FARMWORKER JUSTICE (2013); see also Keith Cunningham-Parmeter, A Poisoned Field: Farmworkers, Pesticide Exposure, and Tort Recovery in an Era of Regulatory Failure, 28 N.Y.U. REV. L. & SOC. CHANGE 431, 443, 491 (2015). 2. Pesticide Safety, FARMWORKER JUSTICE (2017), https://www.farmworker justice.org/content/pesticide-safety [https://perma.cc/BL5J-BQ3U]. 383 Hastings Environmental Law Journal, Vol. 24, No. 2, Summer 2018 United States,3 the Environmental Protection Agency (“EPA”) estimates that up to 20,000 farmworkers are poisoned by pesticides annually.4 For a variety of reasons explored in this Note, pesticide poisoning likely occurs at a much higher rate than this reported estimate. Farmworkers and their children experience exposure to pesticides at work, at home, and at school because pesticides move beyond the targeted areas for application as dust or droplets through the air during and after application.5 This process, called “pesticide drift,” poses health risks to the non- targeted adjacent areas such as “nearby homes, schools, and playgrounds” and “farm workers in adjacent fields.”6 Lack of data regarding farmworkers generally, and pesticide misuse and resulting illness specifically, works to the advantage of farmers who use pesticides to increase crop yield and economic gain.7 The farmworker population suffers in this non-transparent system, where regulations vary greatly state by state.8 Compounding the difficulty of reporting, symptoms of pesticide poisoning may also resemble symptoms of the flu and are hard to detect.9 If symptoms are detected, farmworkers face barriers to medical care due to immigration status and language barriers.10 The majority of farmworkers speak little English,11 and at least half of the farmworker population is undocumented (meaning the workers do 3. BON APPÉTIT MGMT. CO. FOUND. & UNITED FARM WORKERS, INVENTORY OF FARMWORKER ISSUES AND PROTECTIONS IN THE UNITED STATES 1 (2011); see also Unfinished Harvest: The Agricultural Worker Protection Act at 30, FARMWORKER JUSTICE (2013) (estimating the number of farmworkers in the United States as two million workers). 4. 40 C.F.R. § 170.2. 5. ENVTL. PROT. AGENCY, Introduction to Pesticide Drift https://www.epa.gov/ reducing-pesticide-drift/introduction-pesticide-drift 6. BEYOND PESTICIDES, Farmworkers Push for Long Overdue Protections, https:// beyondpesticides.org/dailynewsblog/2013/07/farmworkers-arrive-in-d-c-to-push-for-long- overdue-protections/ [https://perma.cc/X8FM-BTZE]; see also ENVTL. PROT. AGENCY, Introduction to Pesticide Drift https://www.epa.gov/reducing-pesticide-drift/introduction- pesticide-drift (defining pesticide drift as “the movement of pesticide dust or droplets through the air at the time of application or soon after, to any site other than the area intended. Pesticide droplets are produced by spray nozzles used in application equipment for spraying pesticides on crops, forests, turf and home gardens. Some other pesticides are formulated as very fine dry particles (commonly referred to as dust formulations).”) 7. BON APPÉTIT, supra note 3, at 1 (“No data, no problem.”). 8.Id. (“Labor law investigations and record keeping of regulatory enforcement are poor and the monitoring efforts at both the federal and state levels are typically untraceable and non-transparent.”); see also Exposed and Ignored, supra note 1, at 14 (“Regulatory Isolation: Pesticide Exposure Reporting Map”). 9. Exposed and Ignored, supra note 1, at 8. 10. Michael A. Celone, Undocumented and Unprotected: Solutions for Protecting the Health of America’s Undocumented Mexican Migrant Workers, 29 J. CONTEMP. HEALTH L. & POL’Y 117, 117–18 (2013). 11. Breaking Down the Barriers: A National Needs Assessment on Farmworker Health Outreach, HEALTH OUTREACH PARTNERS, 4th ed., 31 (Apr. 2010) (“Regarding language fluency, the majority (75%) of U.S. farmworkers primarily speak Spanish followed by English (21%).”). 384 Hastings Environmental Law Journal, Vol. 24, No. 2, Summer 2018 not have a legal immigration status or permission to work in the United States).12 The proportion of undocumented farmworkers has more than tripled in the past thirty years, and some estimate the number to be as high as seventy percent.13 Another twenty-one percent of farmworkers are permitted to work with temporary visas or as lawful permanent residence status.14 Farmworkers without legal status or with temporary permission to work in the United States risk deportation as retaliation for reporting illegal use of pesticides.15 This Note will ask if and how undocumented immigrant farmworkers themselves can hold parties responsible for pesticide poisoning, what risks that litigation would bring, and contemplate possible solutions. Proceeding through possible solutions, the maze of statutes purporting to protect farmworkers at a federal and state level is exposed as insufficient and ineffective, largely favoring farmers and manufacturers. An immigration-related solution to the problem of pesticide poisoning is an opportunity to make progress towards redressing physical ailments and improving the lives of farmworkers. California is used throughout this Note as a case study to compare protections to those in other states. California is among the few states which provide additional, comprehensive protections for agricultural workers and has a comprehensive reporting scheme.16 Additionally, 12.Id. (“According to the Pew Hispanic Center, there are approximately half a million unauthorized workers within U.S. agricultural industry, more than any other sector in the country. This estimate is thought to be even higher due to seasonal workforce fluctuations. Moreover, the percentage of unauthorized hired crop farmworkers in the U.S. has quintupled since 1989.”). 13. U.S. DEP’T OF LABOR, EMP’T &TRAINING ADMIN., DATA TABLES (1989-2014) (Table 1. National Demographic Characteristics), https://www.doleta.gov/naws/pages/ research/data-tables.cfm [https://perma.cc/QME9-8NPJ]; see also Alfonso Serrano, Bitter Harvest: U.S. Farmers Blame Billion-Dollar Losses on Immigration Laws,” TIME MAG. (Sept. 21, 2012), http://business.time.com/2012/09/21/bitter-harvest-u-s-farmers-blame- billion-dollar-losses-on-immigration-laws/ [https://perma.cc/3XFF-7P7W]; Margaret Gray & Emma Kreyche, The Hudson Valley Farmworker Report: Understanding the Needs and Aspirations of a Voiceless Population, BARD COLL. MIGRANT LABOR PROJECT (2007) (seventy-one percent of workers were undocumented in this study of New York workers); Philip Martin & Richard Mines, Alien Workers and Agriculture: The Need for Policy
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